73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session

 

Senate Bill 772

 

Sponsored by Senator MORRISETTE

 

SUMMARY

 

The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject to consideration by the Legislative Assembly. It is an editor’s brief statement of the essential features of the measure as introduced. Modifies amount of medical marijuana authorized person or designated primary caregiver may possess under certain circumstances. Authorizes multiple-person grow site to produce medical marijuana for up to seven eligible persons. Eliminates affirmative defense of medical necessity in certain circumstances. Clarifies meaning of mature plant for purposes of Oregon Medical Marijuana Act. Authorizes certain licensed health care professionals to administer medical marijuana to authorized persons in certain circumstances.

 

Requires Department of Human Services to develop system to allow authorized law enforcement personnel to access list of persons issued registry identification cards. Requires state and local law enforcement personnel to provide identification to department prior to obtaining information from list of persons issued registry identification cards. Creates Advisory Committee on Medical Marijuana in department.

 

 

 

                                           A BILL FOR AN ACT

 

Relating to medical marijuana; creating new provisions; amending ORS 475.306, 475.328 and 475.331.

 

Be It Enacted by the People of the State of Oregon:

 

SECTION 1. ORS 475.306 is amended to read:

 

475.306. (1) A person who possesses a registry identification card [issued pursuant to ORS 475.309] may engage in, and a designated primary caregiver of such a person may assist in, the medical use of marijuana only as justified to mitigate the symptoms or effects of the person’s debilitating medical condition. Except as allowed in subsection [(2)] (4) of this section, a registry identification cardholder and that person’s designated primary caregiver may not collectively possess, deliver or produce more than the following:

 

(a) If the person is present at a location at which marijuana is not produced, including any

residence associated with that location, one ounce of usable marijuana; and

 

(b) If the person is present at a location at which marijuana is produced, including any residence associated with that location[,]:

 

(A) Three mature marijuana plants, four immature marijuana plants and one ounce of usable marijuana per each mature plant;

 

(B) Seven marijuana plants of any maturity level and a total of seven ounces of usable marijuana; or

 

(C) If only one crop is grown annually at the location, 28 plants of any maturity level and 80 ounces of usable marijuana.

 

(2) The Department of Human Services shall record, on the registry identification card of the person and in the list maintained by the department under ORS 475.331, whether the person chooses to possess medical marijuana in the amounts authorized under subsection (1)(b)(B) or (C) of this subsection.

 

(3) A registry identification cardholder or a designated primary caregiver may register a grow site as a multiple-person grow site with the department. A multiple-person grow site may provide medical marijuana for up to seven cardholders and may grow up to seven plants and possess up to seven ounces of usable marijuana for each cardholder.

 

[(2)] (4)(a) If [the individuals described in subsection (1) of this section possess, deliver or produce] a registry identification cardholder or a designated primary caregiver possesses, delivers or produces marijuana in excess of the amounts allowed in subsection (1)(a) and (b)(A) of this section, [such individuals are] the cardholder or the caregiver is not excepted from the criminal laws of the state but may establish an affirmative defense to such charges, by a preponderance of the evidence, that the greater amount is medically necessary to mitigate the symptoms or effects of the [person¢s] debilitating medical condition of the cardholder.

 

(b) Notwithstanding paragraph (a) of this subsection, if a person possessing a valid registry identification card elects to possess, deliver or produce the amounts of marijuana authorized under subsection (1)(b)(B) or (C) or (3) of this section may not assert the affirmative defense provided under this subsection.

[(3)] (5) The department [of Human Services] shall define by rule when a marijuana plant is mature and when it is immature for purposes of this section. The rule shall provide that a plant that has no flowers and is less than 12 inches in height and 12 inches in diameter is a seedling or start and not a mature plant.

 

"SECTION 1:  ORB 475.302 is amended to read:

 

 "475.302, As used in ORB 475.300 to 475.346:

 

"(I) Attending physician' means a physician licensed under ORS chapter 677 who has primary responsibility for the care and treatment of a person diagnosed with a debilitating medical condition.

 

(2) 'Debilitating medical condition' means:

 

"(a) Cancer, glaucoma, positive status for human immunodeficiency virus or acquired immune deficiency syndrome, or treatment for these conditions;

 

"(b) A medical condition or treatment for a medical condition that produces, for a specific patient, one or more of the following:

 

"(A) Cachexia;

"(B) Severe pain;

“(C) Severe nausea;

“(D) Seizures, including but not limited to seizures caused by epilepsy;

or

"(E) Persistent muscle spasms, including but not limited to spasms caused by multiple sclerosis; or

"(c) Any other medical condition or treatment for a medical condition adopted by the department by rule or approved by the department pursuant to a petition submitted pursuant to OM 475.334.

 

"(3) "Delivery has the meaning given that term in ORS 475.005. Delivery' does not include transfer of marijuana by a registry identification cardholder to another registry identification cardholder if no consideration is paid for the transfer.

"(4) ‘Department' means the Department of Human Services.

"(5) 'Designated primary caregiver' means an individual 18 years of age or older who has significant responsibility for managing the well-being of a person who has been diagnosed with a debilitating medical condition and who is designated as such on that person's application for a registry identification card or in other written notification to the department. "Designated primary caregiver does not include the person's attending physician.

"(6) 'Marijuana' has the meaning given that term in ORB 475.005.

‘(7) 'Marijuana grow site means a location where marijuana is produced for use by a registry identification cardholder and that is registered under the provisions of section 8 of this 2005 Act.

"[(7)] (8) 'Medical use of marijuana' means the production, possession, delivery, or administration of marijuana or paraphernalia used to administer marijuana, as necessary for the exclusive benefit of a person to mitigate the symptoms or effects of his or her debilitating medical condition.

 

"[(8)] (9) 'Production' has the same meaning given that term in ORB 475.005.

"[(9)] (10) 'Registry identification card' means a document issued by the department that identifies a person authorized to engage in the medical use of marijuana and the person's designated primary caregiver, if any.

 

"[(10)] (11) 'Usable marijuana' means the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture or preparation thereof, that are appropriate for medical use as allowed in ORS 475.300 to 475.346. 'Usable marijuana' does not include the seeds, stalks and roots of the plant.

 

"[(11)] (12) 'Written documentation means a statement signed by the attending physician of a person diagnosed with a debilitating medical condition or copies of the persons’ relevant medical records.

 

SECTION 2 ORS 475.306 is amended to read:

 

"475.306. (I) A person who possesses a registry identification card issued pursuant to' ORS 475.309 may engage in, and a designated primary caregiver of such a person may assist in, the medical use of marijuana only as justified to mitigate the symptoms or effects of the person's debilitating medical condition. [Except as allowed in subsection (2) of this section, a registry identification cardholder and that person's designated primary caregiver may not collectively possess, deliver or produce more than the following:]

‘[(a) If the person is present at a location at which marijuana is not produced, including any residence associated with that location, one ounce of usable' marijuana; and]

‘[(b) If the person is present at a location at which marijuana is produced, including any residence associated with that location" three mature marijuana plants, four immature marijuana plants and one ounce of usable marijuana per each mature plant.]

 

"[(2) If the individuals described in subsection (1) of this section possess, deliver or produce marijuana in excess of the amounts allowed in subsection (1) of this section,  such individuals are not excepted from the criminal laws of the state but may establish an affirmative defense to such charges by a preponderance of the evidence, that the greater amount is medically necessary to mitigate the symptoms or effects of the person's debilitating medical condition.]

 

"[(3)] (2) The Department of Human Services shall define by rule when a marijuana plant is mature and when it is immature [for purposes of this section]. The rule shall provide that a plant that has no flowers and is less than 12 inches in height and less than 12 inches in diameter is a seedling or a start and not a mature plant and may be possessed in. any number by a registry Identification cardholder, a designated primary caregiver or a person authorized to produce marijuana for a cardholder under section 8 of this 2005 Act.

 

 

 

SECTION 3  ORS 475.309 is amended to read:

 

"475.309. (1) Except as provided in ORB 475.316 and 475.342 and section 9 of this 2005 Act, a person engaged in or assisting in the medical use of marijuana is excepted from the criminal laws of the state for possession, delivery or production of marijuana, aiding and abetting another in the possession, "delivery or production of marijuana or any other criminal offense in which possession, delivery or production of marijuana is an element if the following conditions have been satisfied:

 

"(a) The person holds a registry identification card issued pursuant to this section, has applied for a registry identification card pursuant to sub- section (9) of this section, [or] is the designated primary caregiver of a cardholder or applicant, or is the person responsible for a marijuana grow site that is producing marijuana for the cardholder and is registered under section 8 of this 2005 Act; and

"(b) The person who has a debilitating medical condition, [and] the Person’s primary caregiver and the person responsible for a marijuana grow site that is producing marijuana for the cardholder and is registered under section 8 of this .2005 Act are collectively in possession of, delivering or producing marijuana for medical use in [the] amounts allowed [in ORB 475.306] under section 9 of this 2005 Act.

"(2) The Department of Human Services shall establish and maintain a program for the issuance of registry identification cards to persons who meet the requirements of this section. Except as provided in subsection (3) of this section, the department shall issue a registry identification card to any person who pays a fee in the amount established by the department and provides the following:

"(a) Valid, written documentation from the person's attending physician stating that the person has been diagnosed with a debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects of the person’s debilitating medical condition:

"(b) The name, address and date of birth of the person;

"(c) The name, address and telephone number of the person's attending physician; [and]

"(d) The name and address of the person's designated primary caregiver, if the person has designated a primary caregiver at the time of application [.]; and

"(e) A written statement that indicates whether the marijuana used by the cardholder will be produced at a location where the cardholder or designated primary caregiver is present or at another location.

"(3) The department shall issue a registry identification card to a person who is under 18 years of age if the person submits the materials required under subsection (2) of this section, and the custodial parent qr legal guardian with responsibility for health care decisions for the person under 18 years of age signs a written statement that:

"(a) The attending physician of the person under 18 years of age has explained to that person and to the custodial parent or legal guardian with responsibility for health care decisions for the person under 18 years of age the possible risks and benefits of the medical use of marijuana;

"(b) The custodial parent or legal guardian with responsibility for health care decisions for the person under 18 years of age consents to the use of marijuana by the person under 18 years of age for medical purposes;

"(c) The custodial parent or legal guardian with responsibility for health care decisions for the person under 18 years of age agrees to serve as the designated primary caregiver for the person under 18 years of age; and:

'(d) The custodial parent or legal guardian with responsibility for health care decisions for the person under 18 years of age agrees to control the acquisition of marijuana and the dosage and frequency of use by the person under 18 years of age.

"(4) A person applying for a registry identification card pursuant to this section may submit the information required in this section to a county health department for transmittal to the Department of Human Services. A county health department that receives the information pursuant to this subsection shall transmit the information to the Department of Human Services within five days of receipt of the information. Information received by a county health department pursuant to this subsection shall be confidential and not subject to disclosure, except as required to transmit the information to the Department of Human Services.

"(5) The department shall verify the information contained in an application submitted pursuant to this section and shall approve or deny an application within thirty days of receipt of the application.

"(a) The department may deny an application only for the following reasons:

"(A) The applicant did not provide the information required pursuant to this section to establish the applicant's debilitating medical condition and to document the applicant's consultation with an attending physician regarding the medical use of marijuana in connection with such condition, as provided in subsections (2) and (3) of this section; or

"(B) The department determines that the inforn1ation provided was falsified. "(b) Denial of a registry identification card shall be considered a final department action, subject to judicial review. Only the person whose application has been denied, or, in the case of a person under the age of 18 years of age whose application has been denied, the person’s parent or Legal guardian, shall have standing to contest the department's action.

(c) Any person whose application has been denied may not reapply for six months from the date of the denial, unless so authorized by the department or a court of competent jurisdiction.

(6)(a) If the department has verified the information submitted pursuant to subsections (2) and (3) of this section and none of the reasons for denial listed in subsection (5)(a) of this section is applicable, the department shall issue a serially numbered registry identification card within five days of verification ,of the information. The registry identification card shall state:

"(A) The cardholder's name, address and date of birth;

"(B) The date of issuance and expiration date of the registry identification card;

"(C) The name and address of the person's designated primary caregiver, if any; [and]

"(D) Whether the marijuana used by the cardholder will be ,produced at a location where the cardholder or designated primary caregiver is present or at another location; and

"[(D)] (E) [Such] Any other information [as] that the department may specify by rule.

"(b) When the person to whom the department has issued a registry identification card pursuant to this section has specified a designated primary caregiver, the department shall issue an identification card to the designated primary caregiver. The primary caregiver's registry identification card shall contain the information provided in paragraph (a) of this subsection.

"(7)(a) A person who possesses a registry identification card shall:

"(A) Notify the department of any change in the person's name, address, attending physician or designated primary caregiver; and

"(B) Annually submit to the department:

"(i) Updated written documentation of the person's debilitating medical condition; and

"{ii) The name of the person's designated primary caregiver if a primary caregiver has been designated for the upcoming year.

"(b}"If a person who possesses a registry identification card fails to comply with this subsection, the card shall be deemed expired. If a registry identification card expires, the identification card of any designated primary caregiver of the cardholder shall also expire.

"(8) A person who possesses a registry identification card pursuant to this section and who has been diagnosed by the person's attending physician as no longer having a debilitating medical condition shall return the registry identification card to the department within seven calendar days of notification of the diagnosis. Any designated primary caregiver shall return the caregiver's identification card within the same period of time.

"(9) A person who has applied for a registry identification card pursuant to this section but whose application has not yet been approved or denied and who is contacted by any law enforcement officer in connection with the person's administration, possession delivery or production of marijuana for medical use may provide to the law enforcement officer a copy of the written documentation submitted to the department pursuant to subsections (2) or (3) of this section and proof of the date of mailing or other transmission of the documentation to the department. This documentation shall have the same legal effect as a registry identification card until such time as the person receives notification that the application has been approved or denied. ".

On page 2, delete lines 1 through 17.

In line 18, delete "2” and insert "4".

In line 35 delete "3”, and insert "5".

On page 3, line 16, delete “4. Section 5 of this 2005 Act is" and insert "6. Sections 7, 8 and 9 of this 2005 Act are".

In line 18, delete “5” and insert “7".

After line 33, insert:

"SECI'ION 8” (1) The Department ~f Human Services shall establish by rule a marijuana grow site registration system to authorize production of marijuana by a registry identification cardholder or that person’s designated primary caregiver who grows marijuana or by a person who is-responsible for a marijuana grow site. The marijuana grow site registration system adopted must require a registry identification cardholder to submit an application to the department that includes:

"(a) The name of the person responsible for the marijuana grow site;

"(b) The address of the marijuana grow site;

"(c) The registry identification card number of the registry cardholder for whom the marijuana is being produced; and

"(d) Any other information the department considers necessary.

"(2) The department shall issue a marijuana grow site registration card to a registry identification cardholder who has met the requirements of subsection (1) of this section.

"(3) A person who has been issued a marijuana grow site registration card under this section must display the registration card at the marijuana grow site at all times when marijuana is being produced.

"(4) A marijuana grow site registration card must be obtained and posted for each registry identification cardholder for whom marijuana is being produced at a marijuana grow site.

"SECTION 9. "(1) A registry identification cardholder or the designated primary caregiver of the cardholder may possess up to six mature marijuana plants and 60 ounces of usable marijuana.

"(2) If the marijuana used by the registry identification cardholder is produced at a marijuana grow site where the cardholder or designated primary caregiver is not present, the person responsible for the marijuana grow site:

"(a) May produce marijuana for and deliver marijuana to a registry identification cardholder or that person's designated primary caregiver as authorized under this section.

"(b) May possess up to six mature plants and up to, 60 ounces of usable marijuana for each cardholder or caregiver for which marijuana is being produced.

"(c) May produce marijuana for up to four registry identification cardholders or designated primary caregivers per year.

“(d) Must obtain and display a marijuana grow site registration card issued under section 8 of this .2005 Act for each registry identification cardholder or designated primary caregiver for which marijuana is being produced.

“(e) Must provide all marijuana produced for a registry identification cardholder or designated primary caregiver to the cardholder or caregiver at the time the person responsible for a marijuana grow site ceases producing marijuana for the cardholder or caregiver.

"(f) Must return the marijuana grow site registration card to the registry identification cardholder to whom the card was issued when requested to do so by the cardholder or when the person responsible for a marijuana grow site ceases producing marijuana for the cardholder or caregiver.

"(3) Notwithstanding subsections (1) and (.2) of this section, a registry identification cardholder, the designated primary caregiver of the cardholder and the person responsible for a marijuana grow site producing marijuana for the registry identification cardholder may possess a combined total of up to six mature plants and 60 ounces of usable marijuana for that registry identification cardholder.

"(4) A registry identification cardholder, the designated primary caregiver of the cardholder and a person responsible for a marijuana grow site may possess marijuana seedlings or starts as defined by rule of the Department of Human Services in any quantity.

“SECTION 1O. ORS 475.326 is amended to read:

"475.326. No attending physician may be subjected to civil penalty or discipline by the Board of Medical Examiners for:

"(1) Advising a person whom the attending physician has diagnosed as having a debilitating medical condition, or a person who the attending physician knows has been so diagnosed by another physician licensed under ORS chapter 677, about the risks and benefits of medical use of marijuana or that the medical use of marijuana may mitigate the symptoms or effects of the person's debilitating medical condition, provided the advice is based on the attending physician's personal assessment of the person's medical history and current medical condition; or

"(2) Providing the written documentation necessary for issuance of a registry identification card Under ORB 475.300, if the documentation is based on the attending physician's personal assessment of the applicant's medical history and current medical condition and the attending physician has discussed the potential medical risks and benefits of the medical use of marijuana with the applicant.

"SECTION 11. ORB 475.319 is amended to read:

"475.319. [(1) Except as provided in ORB 476.816 and 475.342, it is an affirmative defense to a criminal charge of possession or production of marijuana, or any other criminal offense in which possession or production of marijuana is an element, that the person charged with the offense is a person who:]

 

[(a) Has been diagnosed with a debilitating medical condition within 12 months prior to arrest and been advised by his or her attending physician the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition;]

[(b)  Is engaged in the medical use of marijuana; and]

 "[(c) Possesses or produces marijuana only in the amounts allowed in ORS 475.306 (1), or in excess of those amounts if the person proves by a preponderance of the evidence that the greater amount is medically necessary as determined by the person's attending physician to mitigate the symptoms or effects of the person's debilitating medical condition.]

"[(2) It is- not necessary for a person asserting an affirmative defense pursuant to this section to have received a registry identification card in order to assert the affirmative defense established in this section.]

[(3)] No person engaged in the medical use of marijuana who claims that marijuana provides medically necessary benefits and who is charged with a crime pertaining to such use of marijuana shall be precluded from presenting a defense of choice of evils, as set forth in ORB 161.200, or from presenting evidence supporting the necessity of marijuana for treatment of a specific disease or medical condition, provided that the amount of marijuana at issue is no greater than permitted under [ORS 475.306] section 9 of this 2005 Act and the patient has taken a substantial step to comply with the .provisions of ORB 475.300 to 475.346.

“[(4) Any defendant proposing to use the affirmative defense provided for by this section in a criminal action shall, not less than five days before the trial of the cause, file and serve upon the district, attorney a written notice of the intention to offer such a defense that specifically states the reasons why the defendant is entitled to assert and the factual basis for such affirmative defense. If the defendant fails to file and serve such notice, the defendant shall not be permitted to assert the affirmative defense at the trial of the cause unless the court for good cause orders otherwise.]

 

SECTION 12. ORS 475.316 is amended to read:  

"475.316. (1) No person authorized to possess, deliver or produce marijuana for medical use pursuant to ORB 475.300 to 475.346 shall be excepted from the criminal laws of this state [or- shall be deemed to have established an affirmative defense to criminal charges of which possession, delivery or production of marijuana is an element] if the person, in connection with the facts giving rise to such charges:

“(a) Drives under the influence of marijuana as provided in ORB 813.010;

"(b) Engages m the medical use of marijuana m a public place as that term is defined in ORS 161.015, or in public view, or in a correctional facility as defined in ORS 162.135 (2) or youth correction facility as defined in ORS  162.135 (6);

 

 

SECTION 2. ORS 475.328 is amended to read:

 

475.328. (1) No professional licensing board may impose a civil penalty or take other disciplinary action against a licensee based on the licensee’s medical use of marijuana in accordance with the provisions of ORS 475.300 to 475.346 or actions taken by the licensee that are necessary to carry out the licensee’s role as a designated primary caregiver to a person who possesses a lawful registry identification card [issued pursuant to ORS 475.309].

 

(2)(a) A licensed health care professional may administer medical marijuana to a person who possesses a registry identification card and resides in a licensed health care facility if the administration of pharmaceuticals is within the scope of practice of the licensed health care professional. Administration of medical marijuana under this subsection may not take place in a public place as defined in ORS 161.015 or in the presence of a person under 18 years of age. If the medical marijuana administered under this subsection is smoked, adequate ventilation must be provided.

 

(b) Nothing in this subsection requires:

 

(A) A licensed health care professional to administer medical marijuana; or

 

(B) A licensed health care facility to make accommodations for the administration of

medical marijuana.